Saturday, June 30, 2012

When my father first taught me to drive back in East Texas 30 years ago, he passed along a practice that used to be common in more rural areas but which I haven't seen much in bigger cities: Flashing one's headlights to let ongoing traffic know they're coming up on a speed trap. My Dad considered it common courtesy, justified because the ostensible point of a speed trap (besides revenue generation) is to get people to slow down, so if private citizens warn their fellow drivers, they aren't doing anything more than contributing to the goal of reduced lawbreaking.

Given that personal history, I can't help but pity poor Natalie Plummer, who was arrested last week in Houston for holding up a sign warning drives of a "speed trap" ahead on a street in downtown Houston. Here's KTRK-TV's coverage:

The officer told Ms. Plummer that she was being arrested for felony obstruction of justice that carried an penalty of 3-5 years. When she was taken to jail, though, she was only charged with "walking in the roadway where there is a sidewalk present," an allegation she says is a lie: Plummer insists she was standing on the sidewalk holding the sign, and when you watch the video with cars whizzing by, it seems unlikely any reasonable person would stand in the street with the sidewalk right there.

One has to wonder, if this were a young black man in the 5th Ward
instead of a young white woman biking home from the Whole Foods, would media
outlets even consider this news?

Of course, the main reason the officer didn't file felony obstruction charges against Ms. Plummer is that no such law exists. The closest thing on the books I know of is Sec. 38.15 of the Penal Code, "Interference with Public Duties," which is a Class B misdemeanor. But that statute includes a specific exception which should be well-known to any traffic cop. The law states that "It is a defense to prosecution ... that the conduct engaged in by the defendant was intended to warn a person operating a motor vehicle of the presence of a peace officer who was enforcing" traffic laws.

Further, "It is a defense to prosecution under this section that the interruption, disruption, impediment, or interference alleged consisted of speech only," which clearly would apply to holding up a sign. Ms. Plummer wasn't arrested for violating any law and I'd bet dollars to donuts she wasn't standing in the street: She was arrested for "contempt of cop," and the fact that there's no such law on the books didn't stop her from going to jail for it.

How much do you wanna bet it will turn out the officer's dashcam malfunctioned and failed to capture his conversation with Ms. Plummer? This episode exemplifies the adage enshrined in this blog's masthead: You might beat the rap, but you won't beat the ride.

Whenever it's mentioned on this blog that crime rates have declined for the past two decades, a slew of anonymous commenters show up who claim that crime is just as high as ever but police are intentionally underreporting their data, or else victims have been scared away by a phantom "stop snitching campaign." Grits certainly doesn't deny that occurs - in fact instances have been well documented in places like New York City and Dallas. (The HBO drama The Wire famously portrayed this phenomenon as a recurring theme at the Baltimore PD.) But some data - like murders - are difficult to fudge. And surveys of crime victims - which are frequently compared to reported crime data to estimate the extent of underreported crime - consistently show crime drops as substantial as the reported numbers.

So I was interested to see via CrimProf blog this New York Times piece titled, "Crime report manipulation common among New York police, study finds" (June 28), which reported that "An anonymous survey of nearly 2,000 retired officers found that the
manipulation of crime reports — downgrading crimes to lesser offenses
and discouraging victims from filing complaints to make crime statistics
look better — has long been part of the culture of the New York Police Department." One survey respondent put it this way: “Assault becomes harassment, robbery becomes grand larceny, grand
larceny becomes petit larceny, burglary becomes criminal trespass.”

NYPD responded by attacking the study's
credibility: “The latest report from Eterno and Silverman appears
designed to bolster
the authors’ repeated but unsupported claims. ... The
document provides no explanation of how the survey sample was
constructed.” NYPD says the survey contains a sampling bias because those surveyed are self-selected. The surveyors didn't attempt to construct a valid sample group, the way pollsters conduct surveys of voters, for example, but instead calculated data from respondents who self-selected and may represent the views of an outspoken, disgruntled subset. Basically NYPD is saying the survey is invalid for the same reason one can't compare internet polls to those conducted by pollsters using statistically valid sampling techniques.

New York City has reported an 80% drop in major crimes, according to the Times, so if the decrease is really due to fraud by officers downgrading charges, that's a massive conspiracy, and IMO an unlikely one. I don't doubt that virtually every large department succumbs to pressure to fudge crime statistics to some extent, but that would only affect the numbers at the margins. The massive crime reductions recently witnessed IMO can't be explained by manipulating crime stats. The Times story concluded giving voice to a view much closer to Grits' own:

research conducted by Franklin E. Zimring, a
criminologist at Berkeley Law School, that compared the department’s
crime data for homicide, robbery, auto theft and burglary to insurance
claims, health statistics and victim surveys and found a near-exact
correlation.

In an interview Wednesday, Mr. Zimring said his research found that the
80 percent decrease in those four crimes reported by the department from
1990 to 2009 was “real.”

He said that there was always “some underreporting, and there is some
downgrading in every police force that I know of,” but that his research
showed that any manipulation was too minuscule to significantly affect
the department’s crime statistics.

There are a number of powerful political constituencies who consider falling crime rates more of a problem than good news: Police unions, elected DAs and career prosecutors, prison systems and their employees - all of them see job security in rising crime rates and risk to their budgets in acknowledging crime has fallen. None of them want to admit such a motive, which is why on this blog such claims are only ever made by anonymous trolls unwilling to attach their names to their opinions and unable to support them with anything but supposition and anecdote. Even if police downgrade thefts on police reports, for example, the number of insurance claims filed wouldn't show a corresponding drop unless there were actually fewer thefts. And while police surely have incentives to downplay crime, respondents to crime victimization surveys (which do use statistically valid sampling techniques) have no reason to falsely downplay crime.

That said, all crime data is imprecise because of both victim over- and under-reporting as well as differences in reporting methodology, accuracy and completeness among departments. So it's easy (and frustratingly common) to misinterpret short-term trends and unwise to draw conclusions without several years of data for comparison. Grits often thinks many folks' expectations of reported crime data are simply too high: They can tell us broad trends but will never capture every jot and tittle of crime that occurs. Taken together with other sources, though, they paint a convincing picture of unprecedented and IMO undeniable long-term crime reductions over the past 20 years.

Thursday, June 28, 2012

The Internet today, naturally, is abuzz with commentary about the US Supreme Court's ruling upholding most of "Obamacare" but giving states the right to opt out of the Medicaid-expansion piece without losing federal funds they already receive. Now that the court has ruled, Grits thought it worthwhile to iterate the questions raised implicating Texas criminal justice spending. Specifically, will the now-optional state Medicaid expansion happen in the Lone Star state, and will it include hospital care for Texas prison inmates?

The answers could determine whether the Texas Lege can reduce the line item for prison health spending in the next biennium, or if they must increase it by a nine-figure sum. Here's how Stateline.org described the new option to cover state prisoners' hospital bills under the federal Affordable Care Act:

most state prisoners (currently) do not qualify for
Medicaid. That's because all but a few states limit Medicaid to
low-income juveniles, pregnant women, adults with disabilities and frail
elders. The majority of people in lock-ups are able-bodied adults who
do not qualify, even on the outside. In 2014, however, when Medicaid is slated
to cover some 16 million more Americans, anyone with an income below
133 percent of the federal poverty line will become eligible. Since
most people have little or no income once they are incarcerated,
virtually all of the nation’s 1.4 million state inmates would qualify
for Medicaid.

As a bonus to state corrections agencies, most inmates would be
considered new to Medicaid, making them eligible for 100 percent
coverage by the federal government between 2014 and 2019. After that,
states would be responsible for only 10 percent of their coverage. In
addition, state health insurance exchanges—which are required to be
functioning by 2014—would make it easier for corrections departments to
sign inmates up for the program.

So the question arises: Will the Texas Legislature expand Medicaid in 2014, or will the state thumb its nose at the new law and abstain from accepting additional federal healthcare money? Given that the feds would pay 100% of the costs until 2019, not to mention the fact that expanding Medicaid would allow the state to pawn off a great deal of prisoner healthcare costs on the feds, there will be terrific fiscal temptation to accept the subsidies. OTOH, Governor Rick Perry, Attorney General Greg Abbott, and many Republican legislators have staked out extremistpositions against Obamacare, and the state could choose to reject the money on principle. That's a bit like cutting off one's nose to spite one's face, since Texas taxpayers would then be in the position of subsidizing healthcare in other states while failing to receive any of the benefits, not just in expanded coverage for free-world Texans but in reduced state prison health costs.

Though the feds will substantially up their subsidies in 2014, covering inmate hospital care through Medicaid is something some states are already doing.
Reported Stateline.org, "Dr. Gloria Perry, the chief medical officer for the Mississippi prison
system, says her agency heard about the cost-cutting measure from a
health care vendor looking for business in the state. The agency then
verified the legality of the procedure with the state Medicaid office
and quickly created a reimbursement program. No state laws or
appropriations were required."

Given the US Senate's filibuster rule, where 60 out of 100 votes are needed to pass legislation, I don't see the federal healthcare law being repealed even if Mitt Romney is elected President and Republicans reclaim the US Senate, despite a great deal of chest pounding to the contrary on the campaign trail. The battle over implementing federal healthcare legislation has now shifted inexorably to the states.

Whether Texas will accept billions in federal subsidies to expand Medicaid as envisioned under Obamacare will be one of the biggest political debates of the 83rd Texas Legislature. And at the end of the day, Grits wonders whether the deciding factor won't be the new law's effect on prisoner health care costs.

RELATED (6/29): In the Fort Worth Star-Telegram, columnist Bud Kennedy had some kind words to say about this item. "Of all the blog posts and blather Thursday on both sides of the Supreme
Court case, one of the most incisive comments came from Austin criminal
justice blogger Scott Henson," he wrote, concluding, "I give him credit for thinking before shouting."

Regrettably, though, there was an error in Kennedy's recitation of the effect of Medicaid expansion on state prison healthcare costs. He declared that "the federal government would pick up 90 percent of the state's nearly $500-million-per-year prisoner healthcare costs." In fact, as Grits understands it, the Medicaid expansion would only cover hospital costs for prisoners, not in-prison clinics or other health services delivered on-site. That would still be a quite-large sum, but Medicaid would not cover all prisoner health costs.

According to a state auditor's report (pdf) published in 2011, hospital services account for about $16% of Texas prison health costs - roughly $150 million per biennium. Also, Texas runs its prison pharmacy through UTMB-Galveston's hospital system, but Grits can't tell without more research whether pharmacy costs would be covered by Medicaid under that scenario: It's possible. Notably, Texas underfunded prison healthcare in the current biennium by more than $100 million, so while Medicaid wouldn't pay for all prison health costs, it would plug the state's short term prison health deficit. Otherwise, the only way to reduce prison health costs in the state budget is to reduce the number of people Texas incarcerates.

Wednesday, June 27, 2012

The New York Times and the Texas Tribune both published stories yesterday about litigation over extreme heat in Texas prisons, a subject Grits tackled earlier this month after oral arguments at the 5th Circuit Court of Appeals. Another lawsuit over the issue - this one a wrongful death suit - was filed last week. Reported the Times:

four inmates — Larry Gene McCollum, 58;
Alexander Togonidze, 44; Michael David Martone, 57; and Kenneth Wayne
James, 52 — died last summer from heat stroke or hyperthermia, according
to autopsy reports and the authorities. Advocates for inmate rights
believe that at least five others died from heat-related causes last
summer.

On Tuesday, the Texas Civil Rights Project and an Austin lawyer filed a
wrongful-death lawsuit in federal court on behalf of Mr. McCollum’s
wife, son and daughter. They accused prison officials of causing his
death by keeping him in the sweltering Hutchins State Jail outside
Dallas, where he had a seizure around 2 a.m. on July 22 and fell from
his bunk bed.

When Mr. McCollum, who weighed 345 pounds and had hypertension, arrived
at a Dallas hospital, his body temperature was 109.4 degrees. He died
six days later.

The Times offered a bit more detail on other heat-related deaths from last summer:

Nearly two weeks after Mr. McCollum died, Mr. Togonidze and Mr. Martone
died of hyperthermia on the same August day in different prisons. Five
days later, Mr. James was found unresponsive at 3 a.m. at a prison near
the East Texas town of Palestine. His body temperature was 108 degrees,
and the cause of death was “most likely environmental
hyperthermia-related classic heat stroke,” according to the autopsy
report. Like Mr. McCollum, Mr. James had hypertension.

Also mentioned was the disparity in state rules for county jails and practices in state-run lockups: "A Texas law requires county jails to maintain temperature levels between
65 and 85 degrees, but the law does not apply to state prisons. The American Correctional Association recommends that temperature and humidity be mechanically raised or lowered to acceptable levels." Of course, the difference between state prisons and county jails is that most jail inmates are being held pretrial and haven't yet been convicted of anything. Still, it's ironic that the state regulates prisoner conditions at the counties that it's unwilling to address in its own facilities.

At oral arguments earlier this month, 5th Circuit Judge Carolyn Dineen King asked "do we have to wait till you kill someone in order for that person to have a cause of action?" As Grits reported, "The state's attorney answered 'no,' but could not articulate at what
point prior to death a prisoner could sue over excessive heat." Now that litigation has expanded to include a heat-related wrongful death, that debate may eventually become moot, though the three-judge panel at the 5th Circuit didn't seem too impressed with it, anyway.

The Times article closed with what strikes me as an odd assessment from state Sen. John Whitmire:

State Senator John Whitmire, a Democrat from Houston and chairman of the
Senate Criminal Justice Committee, said he was concerned about the
inmate deaths but wanted to examine the circumstances of each. He said
he was not sympathetic to complaints about a lack of air-conditioning,
partly out of concern about the costs, but also out of principle.

“Texans are not motivated to air-condition inmates,” he said. “These
people are sex offenders, rapists, murderers. And we’re going to pay for
their air-conditioning when I can’t go down the street and provide
air-conditioning to hard-working, taxpaying citizens?”

That statement seems strangely disconnected on several fronts. First, about half of inmates in Texas prisons are nonviolent offenders, so the schtick about "sex offenders, rapists [and] murderers," makes for a good sound bite but isn't universally applicable. The fellow whose wrongful death suit was filed last week, for example, was convicted of forgery. Further, as of 2009, 89% of owner-occupied homes nationally and 98% in the South had air conditioning*, so most "hard-working, taxpaying citizens" already have AC. Also, Texas does provide assistance with electric bills when the summer heat spikes, though it does so less frequently after the Legislature last year raided the special fund collected for that purpose. And of course, in the free world excursions to the library, public swimming pools, the supermarket, movie theaters or other air conditioned venues can provide respite from hot conditions. Somebody stuck in a cell with no windows, "sitting in an oven," as Judge King put it, has no such option.

I do agree with Sen. Whitmire, though, that a majority of Texas voters likely would not choose to pay to cool prison units if you asked them, but so what? These are federal lawsuits alleging a violation of constitutional rights. I'd never expect the Legislature to address the problem of their own accord, but if the courts decide the state must provide relief, poll numbers won't matter much.

* Source: American Housing Survey (pdf), 2009, p. 17. Nationally 82% of renters had AC, but regional data is unavailable. Rentals made up 31.6% of occupied housing units in 2009.

Tuesday, June 26, 2012

While the US Supreme Court yesterday struck down most of Arizona's law targeting illegal immigrants (see the opinions), the court declined to rule on one key provision [§2(B)] - whether police could be required to check immigration status of people they detain - saying the issue wasn't yet ripe for federal review. Some Texas lawmakers are saying that opens the door for Texas to enact a similar statute. According to the Fort Worth Star-Telegram ("Texas legislators likely to address immigration in wake of Supreme Court ruling," June 26)

Several state lawmakers are expected to revive the push for a bill
similar to Arizona's "show me your papers" law, even though justices
said in the Arizona ruling that officers couldn't arrest people on
suspicion of immigration crimes. Last year's efforts to pass such a bill
in Austin failed.

"The 'stop and ask' measure is fair game in the
next session," said Bill Miller, an Austin-based political consultant
who works with both Republicans and Democrats. "It absolutely will be
proposed in Texas."

Rep. Debbie Riddle,
R-Tomball, said the ruling has underscored that Texas should have a law
requiring police to check the immigration status of anyone legally
detained.

“The fact is the Supreme Court upheld the most
controversial factor,” she said, referring to a provision that forces
police to ask those under arrest about immigration status if there is
reason to suspect they are in the U.S. illegally.

But Rep. Riddle significantly overstates the leeway granted in the SCOTUS ruling. The court did NOT say such inquiries were constitutional but instead declared that: "It was improper to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that §2(B)’s enforcement in fact conflicts with federal immigration law and its objectives." (Emphasis added.) In other words, that part of the law MIGHT be unconstitutional depending on how it is implemented, but until Arizona actually uses the statute and their state courts interpret its limitations, it's premature for SCOTUS to rule on the question. They didn't say the practice is okay, they said they weren't going to decide right now, which is quite a different thing.

So under what circumstances might such detentions be ruled unconsitutional? The court emphasized a point often lost in immigration debates: "As a general rule, it is not a crime for a removable alien to remain in the United States." Indeed, the court explicitly overturned authority under the Arizona law for "state and local officers to make warrantless arrests of certain aliens suspected of being removable," saying that portion of the statute "creates an obstacle to federal law." The Arizona statute, said the SCOTUS majority, "attempts to provide state officers with even greater arrest authority, which they could exercise with no instruction from the Federal Government. This is not the system Congress created." Instead, according to Justice Kennedy's opinion:

The federal scheme instructs when it is appropriate to arrest an alien during the removal process. The Attorney General in some circumstances will issue awarrant for trained federal immigration officers to execute. If no federal warrant has been issued, these officers have more limited authority. They may arrest an alien for being “in the United States inviolation of any [immigration] law or regulation,” for example, but only where the alien “is likely to escape before a warrant can be obtained.”

So Arizona police can ASK about immigration status, for now, but they cannot
arrest someone solely because of it, even if they entered the country
illegally, except under circumstances prescribed by the feds.

Indeed, the court said it's possible even inquiring about immigration status MAY be unconstitutional but that it was premature to rule on the issue. Wrote Justice Kennedy: "It is not clear at this stage and on this record that §2(B), in practice, will require state officers to delay the release of detainees for no reason other than to verify their immigration status. This would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision."

So the court advised Arizona it would "raise constitutional concerns" if immigration checks "delay the release of detainees for no other reason than to verify their immigration status." But isn't that inevitable? Say I'm stopped on the street or at a traffic stop, an officer asks my immigration status, and I exercise my right to remain silent: Wouldn't verifying my immigration status by definition extend my detention longer than would otherwise be the case? Because the Arizona law hadn't yet taken effect, there were no facts before the court to say so, but there's little doubt those questions will be raised as soon as it's implemented. I have a hard time seeing how verifying immigration status wouldn't "delay the release of detainees." How could it not?

And if in most cases police can't arrest someone regardless of their immigration status, as Kennedy's opinion makes clear (since "it is not a crime for a removable alien to remain in the United States"), what will they do with information about immigration status after they inquire?

Given these open questions, Texas legislators would be wise to let Arizona's legislation play out in the federal courts before following their lead. The practical and constitutional questions around such a practice remain far from resolved.

Monday, June 25, 2012

The US Supreme Court today ruled that life without parole for juveniles is unconstitutional when the sentence is mandatory. (See initial coverage from SCOTUSBlog and from Sentencing Law & Policy here, here, here, and here.) At first blush, Grits thought the case might not affect Texas since we abolished life without parole (LWOP) for juveniles in 2009. But at the Texas District and County Attorneys User Forum, Shannon Edmonds raised a valid point: "since current Texas law eliminates death for 17-year-olds, leaving
LWOP as the only option, isn't it 'mandatory' under current law?"

The issue arises because the age of majority in Texas is 17, whereas the feds consider youth juveniles until they're 18. Edmonds suggested that as a result of today's ruling, "the Legislature will have to pass a life-with-parole carve-out for
17yo killers, as they previously did for capital murderers under 17yo
back in 2009." A prosecutor from Hidalgo County concurred with Edmonds, but wondered what happens between now and then:

It appears that we now have a capital murder offense for which both
punishments under the Penal Code, a death sentence and LWOP, have now
been held unconstitutional when the defendant was 17 or younger at the
time of offense commission. I don't think that it is possible to impose
some other sentence for capital murder that is not authorized under the
Penal Code. So my question becomes what are our options until the
Legislature meets in January? Are we left with proceeding on a murder
charge and trying to obtain a lengthy sentence as our only option at
this point?

Good question. I'm not a lawyer, but offhand it strikes me as correct that there are presently no constitutional sentences on the books in Texas for a 17-year old convicted of capital murder. They're not eligible for the juvenile max sentence (which makes them parole eligible after 40 years), and both the death penalty and life without parole have been taken off the table by the US Supreme Court. That leaves the only apparent option seeking a "life" sentence for "regular" murder, which in Texas makes one eligible for parole after 30 years. For the time being, at least until the Legislature meets again, that must suffice as justice.

There's one other possible impact of today's ruling in Texas: After the state made life without parole the only alternative to the death penalty for capital murderers in 2005, a handful of juveniles were given that sentence after being tried as adults, a situation that ended when the Lege in 2009 made juvenile capital murderers parole eligible after 40 years. So the question arises, will those juveniles be eligible for re-sentencing, or will this be treated as a procedural change that is not retroactive? States around the country will face the same question in the coming weeks and months, some on a much larger scale than Texas, which has just a few such cases.

Thus, 27 juveniles who were convicted of capital murder as adults
between 2005, when the U.S. Supreme Court banned the death penalty for
juveniles, and the passage of the new 2009 law are sitting in prison
without any chance for parole. Monday's ruling should lead to new
punishment hearings for these individuals. ...

In Texas, 10 inmates were younger than 16 at the time they committed their crimes.

AND MORE: The Texas Tribune speculates whether the Governor may commute sentences for the 27 Texas inmates sentenced to LWOP as juveniles:

After the Supreme Court in 2005 decided that the death penalty for juveniles was unconstitutional, Gov. Rick Perrycommuted the sentences for 28 17-year-olds on death row. All 28 were given life sentences with the possibility of parole in 40 years.

After
Monday's ruling, the state is still determining what action to take.
“The Governor’s Office is working with the Attorney General, the Board
of Pardons and Paroles, prosecutors and the Texas Department of Criminal
Justice to determine how many individuals may be affected by this
ruling and what the appropriate steps will be for Texas going forward,”
Josh Havens, a spokesman for the governor’s office, said in a statement.

Jason
Clark of the Texas Department of Criminal Justice said his office began
preparing soon after the court’s announcement, and identified the 27
convicts in anticipation of any requests from the attorney general or
governor’s offices.

Ugh. ... After a black defendant in Denton County drunkenly drove into a cemetery, knocking over gravestones, struggling with and berating the officers who arrested her, a prosecutor in the local DA's office said to a black colleague that the woman's behavior made him “understand why people hung people from trees,” and that it made
him “want to go home and put on his white pointy hat.” When the colleague reported him, she was dubbed a "troublemaker" and harassed by others, including one of the prosecutor's relatives who worked in the office. The pointy-hatted prosecutor's wife was the plaintiff's supervisor. The black prosecutor sued in federal court, and as a result, reported the Denton Record Chronicle, "won
a federal racial discrimination suit against the county Thursday and was
awarded a little more than $500,000 plus attorneys’ fees." Further:

The suit alleged that felony prosecutor Cary Piel made
racially insulting remarks in Boldware’s presence; that his wife, Susan Piel,
who was [Nadiya Williams] Boldware’s supervisor in the misdemeanor crimes section of the office,
did not protect Boldware from having to hear those remarks; and that Ryan
Calvert, Susan Piel’s brother and another prosecutor with the district
attorney’s office, made remarks later that harassed Boldware and contributed to
a hostile work environment. ...

[Attorney Bill] Trantham said the county spent $250,000 defending the suit.
County officials hired Dallas lawyer Thomas Brandt, who specializes in federal
civil rights law, instead of using in-house lawyers. In addition to the
$510,000 award from the jury, the county must pay the fees of Trantham and
Chris Raesz, who also tried the case.

“I think we’re looking at fees of about $100,000 each,” he
said. “This is going to be a million-dollar hit for the county.”

Ms. Boldware and her tormenters are all still employed at the DA's office, which must make for a particularly awkward dynamic with so many family members and former co-defendants working there.

Denton County District Attorney Paul Johnson fired four prosecutors
in his office Monday after the county lost a $510,000 racial
discrimination lawsuit last week in federal court.

Susan Piel,
Cary Piel, John Renz and Ryan Calvert all were fired at about 11 a.m.
Monday, said Jamie Beck, first assistant district attorney who acts as
Johnson’s spokeswoman.

She declined to comment further on the matter.

Denton
lawyer Bill Trantham, who tried the case against the county, said
Monday that he thought it was politically expedient for Johnson to fire
all four of the lawyers involved in the case.

Susan Piel is married to Cary Piel, Trantham said. Calvert is his brother-in-law and Renz was his partner in a felony court.

“I think it’s an earthquake up there,” he said of the district
attorney’s office. “From a political standpoint, I’d rather get rid of
them all than have anyone left over when re-election time came. If I’d
been Paul Johnson when it first happened, I would have just fired Cary
on the spot and been done with it.”

Really? The DA knew about the actions criticized in the lawsuit three years ago but is only firing them after a jury came out against him? That seems like they're not being fired for harassing a co-worker but for costing the county money. Bad optics, as they say.

Long-time readers may recall that this blog's first couple of years devoted extensive coverage to the downfall of Texas system of regional narcotics task forces, which were first regulated by the state and later de-funded by the Governor after a series of scandals in Tulia, Hearne, and elsewhere. As of June 30, the last of those entities will officially no longer exist.

At their height, Texas had 53 multi-county drug task forces which employed more than 700 officers, but after the Governor shifted their money to border security and other priorities, only one was able to keep going: The West Central Texas Interlocal Crime Task Force, which had a large sum of money in the bank from a massive 1999 currency bust on I-20. Thanks to that $9.9 million stash, the task force "remained operational long after others were shuttered."

Several other task forces had hoped to stay open through an "eat what you kill" strategy, living off asset forfeiture income like privateers plundering enemy vessels on the high seas. But that revenue turned out to be unreliable at best and this task force was the only one with enough forfeiture money already banked to seriously make a go of it.

According to the Abilene Reporter News (June 21), "In 2011, with seizures down, the decision was made not to keep the task force, and its $750,000 annual operating budget, afloat." As of last week, "Agency equipment and vehicles already have been auctioned, and the final
piece of business was to return evidence in pending cases to their home
jurisdictions."

Eastland County Sheriff Wayne Bradford told the Reporter-News that:

instead of sting operations, the county was focusing on traffic stops.

"Working traffic is our best option right now, using intelligence
gathered from stops. We catch people with drugs, ask where they got it,
and if they saw drugs there within 72 hours, we can get a search warrant
and go in there and try to make an arrest," he said.

Employment data Grits published over the weekend from TDCJ misinterpreted and overstated job turnover trends among prison guards, TDCJ spokesman Jason Clark emailed to say, though he graciously added that it was "our fault for not putting an appropriate caveat on the turnover report." See his explanation below the jump:

Said Perry to CBS' Bob Scheiffer, "If this President over the past three and a half years had made any effort to secure the border instead of running operations like Fast and Furious ..." then he trailed off into his Nixon comparison without finishing the thought. It's a bizarre framing of the issue since the Obama Administration has beefed up border security (a buildup, incidentally, that this blog has criticized) more than any time since Woodrow Wilson sent the Army there in 1916.

Grits must admit, I'm befuddled at how ineptly the Obama Administration has handled the "Fast and Furious" investigation by Congress. In politics, it's often not the act itself that gets you in trouble but the coverup. The politically smart thing to do would have been to release everything, continuously point out the bungled undercover operation was planned and launched during the Bush Administration, fire an ATF administrator or three, and put the issue as quickly as possible in the rearview mirror. The most logical reason for NOT doing that is in fact the one cited by Attorney General Eric Holder and dismissed out of hand by his partisan critics - the possibility of revealing undercover agents and sources. (Ironically, President Bush used
executive privilege in order to cover up the outing of an undercover agent,
while Obama is now being criticized for using it to keep operatives from being outed.)

To be clear, there's no doubt that Fast and Furious was one of the most screwed up undercover operations ever, with the ATF targeting cartel operatives who were also paid FBI informants. And it was a bipartisan screwup, spanning administrations. Once hundreds of deaths, including a US Border Patrol agent, were linked to guns lost in the operation, the boondoggle reached epic proportions.

But there's more than a little irony when folks like Rick Perry who pound on "border security" themes make such attacks. Mules caught smuggling drugs north or guns south are the lowest folks on the cartel totem pole, and arresting them barely makes a dent in the problem: For every mule arrested at a border checkpoint two more crop up to take their place. So if you want to go after the big fish - actual cartel leaders - the only way to do it is through long-term, large-scale undercover operations like Fast and Furious. And such operations must offer the cartels something to justify the risk: Guns, shipment protection, money laundering services, or what have you. Otherwise, why would they let an undercover operative near them?

A small portion of the public favors full-on drug legalization (for marijuana, now a majority). But if one believes the drug war should be prosecuted - if you believe the US government should be targeting drug cartels through law enforcement - I don't see any other way but long-term undercover ops like Fast and Furious. Inevitably, some of those will fail, just like the military has often failed to stop violence in Afghanistan despite their best efforts. But should they not try? Would it have been better if they'd remained paralyzed by fear of failure? And importantly, does anyone believe that without Fast and Furious, Mexican drug cartels would have been unable to buy guns and kill people with them? I certainly don't.

Ironically, Governor Perry and other Fast and Furious critics are adopting arguments normally bracketed to supporters of gun control. A common refrain from the NRA and gun-rights advocates - in the past including Governor Perry - is that guns don't kill people, people kill people. The same is true in the case of the Border Patrol agent and others killed using guns from Fast and Furious: The cartels are responsible for the people they kill, not the Obama Administration. Or, if Perry et. al. believe suppliers of guns are to blame, it's hard to understand why the same logic doesn't undermine their domestic stance on gun rights. Perhaps discomfort with that strange repositioning is behind the almost bizarre accusations by some conservatives that Fast and Furious was intended (by the administration and a shadowy cabal of gun control advocates) to fail, blow back, and thereby give Americans cause to enact stronger gun-control laws. That nutty idea is spreading in large part because there's been no real information released to counter it.

I for one hope for a quick about-face from the Obama Administration. Release as much information as possible to the general public without putting undercover operatives at risk, and release everything else under the usual confidentiality requirements for Congressional oversight of national security. Then, like gawkers slowing down on the highway to look at a car crash, we can all see the mess for ourselves and move on to our day jobs.

According to the New York Times, Texas exoneree Anthony Graves gave the most compelling testimony last week at a Congressional hearing on solitary confinement. The article opened:

Solitary confinement “is inhumane and by its design it is driving men insane,” a former inmate who spent 18 years in prison in Texas, a decade of that time in isolation on death row before being exonerated, told a Senate panel in a hearing on Tuesday.

“I lived behind a steel door that had two small slits in it, the space replaced with iron and wire, which was dirty and filthy,” said Anthony Graves, whose conviction for involvement in multiple murders was overturned in 2006. “I had no television, no telephone and most importantly, I had no physical contact with another human being.”

The hearing, held before the Subcommittee on the Constitution, Civil Rights and Human Rights, represents the first time lawmakers on Capitol Hill have taken up the issue of solitary confinement, a form of imprisonment that many human rights advocates believe violates the Eighth Amendment’s prohibition of “cruel and unusual punishment” and that has drawn increasing scrutiny in recent months in the United States and internationally.

See a related Times editorial which praises Graves' "moving" testimony. For more, see Anthony Graves and Jim Ridgeway, who runs the blog Solitary Watch, interviewed about solitary confinement on Democracy Now:

Another high-profile capital murder conviction may be overturned based on alleged prosecutorial misconduct, according to findings of fact and conclusions of law entered by a judge last week in a habeas writ in Shelby County. The judge recommended a new trial for Kenneth Wayne Boyd, who was sentenced for capital murder along with three co-defendants following a trial marked by "the use of jailhouse snitches high
on crack, lying witnesses, and suppressed evidence," reported KTRE-TV (June 21). The men were convicted of killing three people in 1997, including a 13-year old girl, but one of the convictions has already been overturned and now Mr. Boyd's seems headed in the same direction:

Boyd has now filed a Writ of Habeas Corpus, a document asking for freedom due to injustices.

Thursday, an order signed by District Judge Charles Mitchell stating agreement with allegations made by Boyd was filed.

It recommends that the Texas Court of Criminal Appeals release Boyd, vacate his sentence and order a new trial. ...

The order cites a pattern of prosecutorial
misconduct including suppressed items of evidence and false testimony.
These are some of the same issues that led to the appeals court throwing
out Boyd's co-defendant, Rodney Moore's life conviction.

Boyd was whisked away in 1999 following his life sentence for
capital murder. To this day he maintains his innocence, along with three
co-defendants.

Witnesses say he was in Jacksonville, not
Center, When Brian Brooks, Percy Moore and a sleeping 13-year-old
Christy Calhoun were gunned down in 1997.

He even passed a polygraph.

But recommendation for relief extends way beyond that.

Facts and conclusions of law are listed in an order signed by District Judge Charles Mitchell.

It cites the use of jailhouse snitches high
on crack, lying witnesses, and suppressed evidence on the part of
then-District Attorney Karen Price. ...

The order claims the lies were all part of "deals" in exchange for their testimony.

The order reports the state suppressed critical information including that from a prime suspect.

The order cites a pattern of misconduct by Price. This gave the appearance the state would do anything for a conviction.

The website Shelby County Today offered this summary of the claims upheld by the district judge in Mr. Boyd's habeas writ:

A) Confrontation Clause Claim - Admission of Rodney Moore's out-of-court
statement through the testimony of Derrick Brown violated the
Confrontation Clause of the Sixth Amendment to the United States
Constitution. B) Brady Claim (The
State has an affirmative duty to disclose evidence favorable and
material to a defendant's guilt or punishment under the Due Process
Clause of the Fourteenth Amendment) - State failed to disclose
material, exculpatory evidence to Boyd's defense team including but not
limited to: a partial report of a polygraph examination of a State's
witness, letters sent from State's witnesses to the former District
Attorney shortly before Boyd's trail; offense reports indicating that
another person besides Boyd was responsible for the murders; and
information that another State's witness had failed a polygraph
examination. C) False Testimony Claim -
The application claims false testimony was given by several State's
witnesses in an attempt to "cut a deal".

Ugly stuff. And ironically, the woman who prosecuted the case is in a runoff for District Attorney in the GOP primary! Hell, in Shelby County, I wouldn't be surprised if she wins.

Saturday, June 23, 2012

After TDCJ closed a wing of the Connally unit because of understaffing among correctional officers (COs), Grits asked for data regarding staffing levels at other units and was sent this report from May 31 detailing staff vacancies across the agency. Correctional officer staffing at the Connally unit was lowest, but five other units were at less than 70% of full staffing as of that date:

These units are dangerously understaffed and operating unsustainably on overtime. Another five units were at between 70-80% of full staffing. Overall, last year TDCJ was 22.4% below the number of correctional officers budgeted. But digging a bit deeper into the numbers, TDCJ is having an even harder time retaining COs than in the past. According to the agency's FY 2011 turnover report, obtained by Grits yesterday and posted online here, COIs, or entry level staff, continued to leave the agency at a whopping 59.4% rate, roughly the same as the year before. But separations by COIIs increased last year, to 56.5%, up from 50.6% in 2010. Equally concerning, COIII's are leaving the agency at a higher rate than the previous year: One third (33.8%) left the agency in 2011 compared to 28.1% in 2010.

At those rates, that means only 17.7% of new hires at COIs make it through the process to become COIIIs, down from 20.1% in 2010. (See the correction/clarification in this update post.) And a third of COIIIs left last year as well. (People with a bachelors degree or military experience can start at COIII, so their high turnover rate also reflects folks leaving in the early part of their tenure.) In essence, out of every five COIs the agency hires, they lose (a bit more than) four of them.

More experienced COs are also leaving at slightly higher rates. Some 14.7% of COIVs left the agency in 2011 compared to 11.4% in 2010, and 10.2% of COVs left the agency, compared to 8.4% the year before. Overall, a whopping 6,124 COs left TDCJ last year, which after new hires left more than 2,500 slots unfilled.

As a commenter pointed out the other day, there's a limited pool to draw on for these jobs. Folks with significant education or skills can generally find higher paying work. And with one in 25 Texas adults in prison, jail, on probation or parole - and a much larger number having criminal records - many folks for whom TDCJ would seem like a good job from an economic standpoint aren't eligible. Plus, Texas is an urban state and most of the prisons are in rural counties, so there's a location mismatch between jobs and workers.

TDCJ has offered a one-time bonus to recruits willing to work at their most understaffed units, doubling a bonus created in 2008 for the same purpose from $1,500 to $3,000. That should help but it's a short-term fix. As of May 2011, according to the Bureau of Labor Statistics, the mean wage for Texas correctional officers stood at $34,880 - not the lowest in the region but probably not competitive enough to attract people from elsewhere. State and local governments collectively employ more than 48,000 people as guards in Texas prisons and jails, according to the BLS, giving Texas the largest number of correctional officers in the nation. One wonders whether the state has maxxed out its labor pool available to do that job in areas where units face chronic understaffing.

Friday, June 22, 2012

According to Wikipedia, the Phoenix program was a CIA-run initiative which used "infiltration, capture, terrorism, torture, and assassination" to "neutralize" civilian non-combatants during the Vietnam War. So it's more than a little ironic that that's the name chosen for the new Texas Juvenile Justice Department (TJJD) program aimed at isolating (neutralizing?) violent individuals from the general population at Texas youth prisons.

Despite its inapt appellation, TJJD today voted to open up a new isolation wing previously shuttered in Mart, TX. The Texas Tribune yesterday offered up a preview of the decision. Reporter Emily Foxhall quoted TJJD spokesman Jim Hurley saying the unit would not "be considered a lockdown or isolation facility," but "would involve reopening an unused, 24-bed dorm within the already existing Mart facility" Having examined the new rules governing the so-called "Phoenix" program, however, they say "youth are assigned to individual housing units," not a "dorm." Upon further questioning, Hurley told Grits the new unit will consist of three pods, each with eight cells and a common area with two JCOs assigned to each pod.

The facility won't quite be the equivalent of juvie "ad seg" (the euphemism for solitary confinement in the adult system). At TDCJ, inmates in ad seg get one hour recreation per day and no other time outside their cells. In the Phoenix program, the rules require a minimum of five hours per day outside their cells, four of them for education. A letter from advocates to the TJJD board declared, "There are no requirements for out-of-cell time beyond 4 hours for
education and 1 hour for large muscle exercise," citing proposed rules for the Mart facility. "While we have been assured
that the intent is to give youth 16 hours of programing, there is
nothing in the rule itself that speaks to this as a requirement. Keeping
youths in cells for 19 hours per day will worsen, not improve, their
behavior."

At Giddings — where gang activity and disruptions triggered a
legislative investigation in April and demands for action to curb
chronic violence that had left both youths and staff injured — a new
report for the week ending Tuesday showed 52 youths requested to be
placed in security cells for protection.

That was among 352 youths who were referred to security that week.

Beyond Giddings, according to that same weekly incident report (which Grits obtained from TJJD), the agency reported a whopping 1,388 security referrals last week, of which 72 were self-referrals (including the 52 at Giddings). Staff referrals included 12 youth-on-staff assaults and 43 youth-on-youth assaults. At those rates, 24 secure beds will fill up pretty darn quickly.

Which raises the question, with that many security referrals, how will the 24 beds be prioritized? Standards for when youth will be placed in the Phoenix program are amorphous and subjective. Says the advocate letter, "The eligibility criteria ... include a catch-all for youth who engage in 'any other major rule violation' if the placement is directed by the executive director 'or designee.'" Further, "Criteria for completion of stages in the Phoenix program are vague and highly subjective," an assessment with which your correspondent concurs. (Hurley told me there will be more rules coming soon that may fill in some of the detail.)

With 1,388 security referrals and 55 assaults in a single week (remember, there are only 1,100 youth in the entire system), will 24 new security beds make a difference? It sounds to me like whether the new wing is opened or not, Texas Appleseed's Deborah Fowler is 100% correct that real security solutions must be identified at the unit level. This "fix" is a band-aid at best, kicking discussions about structural problems further and further down the road. There are already isolation cells at the campuses. All this seems to do is add transportation logistics and management of yet another new program to all the agency's existing security issues and admin duties. Via email, Fowler commented to Grits:

Why the board is so confident that the answer is a NEW program is
beyond me, when the agency hasn’t been able to effectively implement the
programs that are on the ground now.

Keep in mind that the “enhanced” version of ReDirect (and by the way,
“enhanced” simply means they’ve done away with the limit on the number
of days a youth can spend in the program, and have done away with the
requirements that youth are out of their cells for 8 hours/day) has been
in place at Giddings for at least a month – and we are STILL seeing
problems at that facility.

There's notably no limit on how long youth may be placed in the Phoenix program. Hurley said everyone who enters must complete Aggression Replacement Therapy (ART) which takes a minimum of 10 weeks, so that's likely the minimum length of stay for those sent there. But in the draft rules there is no maximum, just like max limits were eliminated for the "ReDirect" program (which is the new name for Behavioral Management Plans, which in turn was for years the Texas juvenile-justice euphemism for on-campus solitary confinement).

Further, it's unclear exactly how youth end up in the Phoenix program and how they get out. Reported the Trib:

Deborah Fowler, deputy director of the advocacy group Texas
Appleseed, said she doesn't believe the new Phoenix program or the
change to the Redirect program are solutions to the violence. She said
the Phoenix program rules lack specifics about which youths would be
eligible and when they could leave. And she said even if the Phoenix
program is approved, she doubts it will live up to TJJD's promises,
saying the agency has failed to adequately implement similar programs in
the past. Instead, Fowler believes independent experts should be hired
to assess the problems and suggest solutions.

Said Fowler, "The overriding
concern is that whatever this program looks like, simply moving kids
from one facility to another is not going to solve the crisis," That's also my own gut reaction, but the TJJD board voted to move forward with the idea, anyway, so time will tell. (FWIW, I sincerely hope my pessimism is unfounded.)

Finally, I just about coughed up a hairball upon reading this commentary from Mike Ward's story:

[State Sen. John] Whitmire said while he respects the advocacy groups, he's disappointed in their position.

"I think they need to let the administration and the board do their job for the people of Texas,” he said. "...We’re trying to save these troublemakers. By going to Mart it might keep them from going to the adult system.”

Was Sen. Whitmire letting "the administration and the board do their job" when he accused the executive director of a "hug a thug" mentality and enlisted an oft-favored reporter to write a one-sided hit piece lambasting Cherie Townsend's management decisions, directly leading to her resignation? I respect Sen. Whitmire, but if he wants to micro-manage agency decisions then he can hardly blame advocates for their participation. If he's not content to "let the administration and the board do their job," why in heaven's name should they refrain from comment? It's not like anybody thinks the agency is doing the job well.

Prisoners from four dorms at the the 2,800 bed Connally unit in south Texas were were transferred to other units after chronic water shortages, but ironically the immediate reason for the move wasn't water: They just can't keep the unit staffed. TDCJ spokesman Jason Clark told Mike Ward at the Austin Statesman ("Portion of South Texas prison closed because of water, staffing shortage," June 22), "As of May 31, there were 527 authorized correctional officer positions
at Connally," he said. There are currently 309 correctional officers on
duty and 218 vacancies." That's a 41% vacancy rate among Connally unit staff, which puts massive pressure on remaining workers, who must fill in the gaps with overtime.

Units located in places like Karnes County where fracking has boosted jobs in the oil and gas industry face a particular problem, competing for the same workers in a small pool and offering sub-standard wages. If you were going to take a job working in the Texas heat with no AC, most rational people would choose the job that a) paid a lot more and b) didn't involve constantly dealing with criminals. That dynamic isn't going away for the next several years.

Regular readers know this is not a new problem. The annual turnover rate for corrections officers (COs) at TDCJ topped 22% as of December 2011, with some rural units like Connally facing even more serious shortages. About 80% of new recruits drop out, so TDCJ must hire and train five newbies to end up with one, fully trained, more experienced CO down the line.

In the near term, TDCJ plans to institute recruiting bonuses to hire more staff, though heaven knows where the money will come from given the agency's already overstrapped budget:

to ease the chronic staffing shortages at Connally and six other
state prisons, Brad Livingston, the prison system's executive director,
announced a one-time recruitment pay bonus will be doubled — from $1,500
to $3,000 — for guards who agree to work at the understaffed lockups.

"We
are also redoubling our recruitment efforts and have recently launched a
newspaper and radio recruitment campaign for correctional officers," he
said.

That may boost short-term hiring, but with four out of five new recruits washing out, it's still not a long-term solution. TDCJ employs the most people of any state agency and Texas prison staff are among the lowest paid in the nation. Boosting pay by some significant amount or creating more financial incentives for retention could help solve or at least mitigate the problem but the state's budgetary crisis likely makes that a non-starter.

Texas can't afford to incarcerate all the prisoners it currently houses. Prison healthcare was underfunded by more than $100 million this biennium and the agency can't find enough guards willing to work at existing wages to staff rural units. Though at this point Grits sounds like a broken record, the only practical way to reduce those costs is to change the laws to reduce the inmate population and close more prisons, starting with rural units that struggle to maintain adequate staffing.

Thursday, June 21, 2012

Here are a few items that didn't make it into their own posts but deserve Grits readers' attention:

Police robots
The Austin Police Department plans to deploy robots developed for the military that cost about $10,000 apiece and will be used for surveillance, executing search warrants and by the bomb squad, which already uses a less sophisticated version.

Can America reduce its prison population?
A pessimist questions, "Can America reduce its prison population?" If "non-prison alternatives can't be proved to work, she said, the 'incredibly huge' constituencies for the status quo, including labor
unions for prison employees and rural communities that depend on income
from prisons, will prevail."

Private prisons waning?
"US states are beginning to rely less on privately run prisons," says the BBC, but Canada is considering using them. Meanwhile, the private prison company Community Education Centers is having a bad week.

Recently, in an item titled "Hypothesizing reasons for continued crime declines," Grits mentioned the theory that new and improved pharmacology is a contributing factor to reduced crime, particularly juvenile crime. So I was interested to see data describing the growth in behavior modification drugs given to youth, particularly for attention deficit disorder. According to Reuters:

From 2002 to 2010, the use of ADHD drugs grew by 46 percent -- or
some 800,000 prescriptions a year. The top drug dispensed to adolescents
was the stimulant methylphenidate, also known as Ritalin, with more
than four million prescriptions filled in 2010.

"What the article is suggesting is that the number of children that
we are treating for attention deficit disorder has gone up," said Dr.
Scott Benson, a child and adolescent psychiatrist and a spokesperson for
the American Psychiatric Association.

"For the most part I think the overall increase reflects a reduction
in the stigma," he told Reuters Health. "It used to be, ‘You're a bad
parent if you can't get your child to behave, and you're a doubly bad
parent if you put them on medicine.'"

Dr. Lawrence Diller, a behavioral pediatrician who has written
extensively about ADHD, was more critical of the rise in stimulant
prescriptions, noting that the U.S. is far ahead of other countries in
its use of the drugs.

"You have to look at how our society handles school children's
problems. It's clear that we rely much, much more on a pharmacological
answer than other societies do," Diller said. "The medicine is
overprescribed primarily, but under-prescribed for certain inner-city
groups of children."

See the abstract from the paper described. Overall, prescriptions for youth have recently declined, but mostly that's because of a reduction in antibiotics given out, a reaction to their massive over-prescription in years past. At an instinctive level, Grits is not a fan of the idea of medicating kids to instill good behavior as opposed to, say, teaching them. I understand the "stigma" attached to drugging one's kids to rein in bad behavior and part of me considers it justified (certainly IMO it should be a last resort). But Grits remains open to the notion that such medications have reduced misbehavior and even criminality among youth, though I've never seen someone try to quantify the scope of that effect. Whether that's a good or bad thing overall depends on whether the drugs also reduced creativity, stifled emotional development, whether they prevent acquisition of tools for self-control sans medication, and a host of other aspects that can't be measured by student behavior scores or crime-rate data.

I also wonder about the suggestion that psychotropic drugs are "under-prescribed for certain inner-city
groups of children" (read: minority youth). Another article from the journal Pediatrics published this month declared that "Maladaptive
aggression in youth is increasingly treated with
psychotropic medications, particularly second-generation antipsychotic
agents.
Multiple treatment modalities are available, but
guidance for clinicians’ assessment and treatment strategies has been
inadequately
developed." But if assessment and treatment strategies have been "inadequately
developed," I'm unclear how they can make the normative assessment that psychotropic drugs are "under-prescribed for certain inner-city
groups of children"?

According to another article from Pediatrics, "In children and adolescents the Second Generation Antipsychotics (SGAs)
represent the class of psychotropic drugs whose use has grown more
significantly in recent years: they are primarily used for treatment of
patients with disruptive behavior disorders, mood disorders and
pervasive developmental disorders or mental retardation." Notably, though, the side effects of using antipsychotics for behavior modification in non-psychotic youth are only beginning to be understood. According to this article, "In randomized studies, adverse effects were usually relatively minor,
easily predictable and manageable, whereas long-term open-label studies
have indicated that some adverse event, such as the metabolic effects,
may be severe and potentially life threatening on the long-term."

The relation between pharmacology and crime reduction is an issue Grits would like to delve into deeper. The medical landscape has changed dramatically in the last decade regarding psychotropic drugs for youth, but the public policy implications remain poorly understood. We know the pharmaceutical companies benefit from these trends, I just hope it's also true that the kids do.

Here's a link to the Urban Institute study (pdf) out of Virginia described in the last three items. That study opens up amazing possibilities: Should old sexual assault cases be reviewed more comprehensively to check for false convictions? So far DNA exonerations have occurred in the few instances where defendants persistently sought to prove their innocence over time, often for decades. The Urban Institute study is the first effort I know of to identify false convictions through an objective, external review that isn't specific to a given case. I've not had a chance to read the whole document yet, but from the media coverage it seems something of a breakthrough.

Last year a federal district judge in south Texas threw out a lawsuit by
an aged prisoner who sued over extreme heat in the un-air conditioned
prison dorm he was in. The case, Eugene Blackmon v. Warden Kukua, et al,
was appealed to the 5th Circuit and heard at oral argument by a
three-judge panel on June 4. (You can listen to oral arguments here; the case number is 11-40316.)

At trial, the judge entered a directed verdict after plaintiff's arguments, so the state never had to put on a defense. The judges on the 5th Circuit, though, seemed less sure the case hadn't been made. Testimony at trial indicated that, in the summer of 2008, the heat index (the combined effect of temperature and humidity) was 126 degrees or more on more than 10 days, at one point reaching 130 degrees in the closed dorm room with no open windows. At those heat levels, said Blackmon's attorney, expert testimony before the court indicated "heat stroke is not only probable but imminent."

Judge Carolyn Dineen King seemed especially inclined to allow the suit, declaring to the state's attorney at one point that "If you win this case it's by a very thin reed." The question in her mind, she said, wasn't whether it was negligent to house prisoners in such conditions but whether it rose to the level of a constitutional violation. At one point Judge King declared, "these guys are sitting in an oven in the heat of the heat and no one gives a darn, is how this is coming across." Ouch! She added that "There's not a person in this room who would go and sit in that prison for a day in that kind of heat." At one point she asked, "do we have to wait till you kill someone in order for that person to have a cause of action?" The state's attorney answered "no," but could not articulate at what point prior to death a prisoner could sue over excessive heat.

If the 5th Circuit rules in the plaintiff's favor, the case will be remanded to the lower court for a new trial, which this time would surely be seen through to a conclusion and a jury verdict.

As part of a hearing going on today, a half-dozen exonerees including Cornelius Dupree from Texas - who was incarcerated for 30 years following a false conviction for rape and robbery - submitted personal statements to the US Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights regarding their experiences with solitary confinement. See the written testimony (pdf) submitted by the six men, and here's Dupree's:

City staff in Dallas criticized municipal court judges in a presentation to the city council last week for not using their offices to maximize revenue from Class C misdemeanor cases. Their biggest beef: That "average revenue per case last fiscal year was far lower than in other
cities — $41.49, as compared with $60.26 in Austin and $104.34 in
Irving." ("Dallas officials roll out plan to fix municipal courts," June 19) Apparently this year's "warrant roundup" was the final straw. The story describes:

a city “warrant roundup” this year, which, at least from a financial
perspective, went dismally. The city arrested 893 people in the roundup.
According to the briefing, judges granted 96 percent of the defendants
“time served” rather than holding them to fines.

“If a person has ten tickets and is in jail one day, all tickets are credited with the one day,” the briefing says.

The
roundup’s defendants had about $538,000 worth of tickets. But once in
front of judges, they were fined only $20,360, the briefing says. Of
that, only $2,187 has been collected.

Meanwhile, the city spent $71,000 to make the arrests.

The city manager claims those numbers raise "questions as to the value of the warrant roundup effort, or any effort by police, to arrest those ignoring city notices," but I couldn't disagree more. Arrest and a night in jail is adequate punishment for most Class C scofflaws, by any public safety measure. To me, the concerns raised by the city manager speak more to the transformation of enforcement of petty municipal statutes in recent years from an issue of public order to a mere cash cow. The purpose of criminal law is not to turn a profit, and these judges' job is not to maximize revenue, but to the city manager they're not doing their job if they don't wring every last dime from defendants. That mentality both misunderstands and deforms the justice system.

Notably, the New York Times on Sunday had a feature about municipal courts in New York City, which there are called "summons courts," declaring that "New York is a multiracial city, but judging from the faces in cramped
courtrooms, one would think that whites scarcely ever commit the petty
offenses that lead to the more than 500,000 summonses issued in the city
every year." One of the judges was quoted saying only black and Latino people were ever charged in his court with drinking alcohol in public. “As hard as I try,” he wrote, “I cannot recall ever arraigning a white defendant for such a violation.” Grits has not spent any time in Dallas municipal courts, but I'll bet the racial makeup of those who cycle through there isn't much different than described in NYC.

The Dallas News story cited a BS calculation that "Last fiscal year, the city collected only about 25 percent of the $43
million that would have been realized under a perfect-world scenario for
city officials — a world in which everyone who took care of their
tickets did so by simply paying up." But that's absurd! For starters, it assumes everyone is guilty, and that due process rights are an annoyance we'd be better off ignoring "in a perfect world." In New York, the Times reported, the majority of those who show up for court "will have their cases dismissed because the charge is not substantiated or because the judge thinks it is nonsense." The Dallas News story offered no judges' assessment about why cases are dismissed or fines reduced (they called the administrative judge for comment but he didn't call back before deadline), instead letting the city manager portray the jurists as soft on crime. Sounds to me like a cheap shot.

Finally, we're seeing corrections professionals standing up to some of the misguided policy suggestions from the media and legislators regarding application of adult corrections models to juvenile offenders at the Texas Juvenile Justice Department. This is a battle between reason and emotion, the frontal cortex vs. the amygdala, and regrettably in the modern media, appeals to the latter predominate.

Still, an op ed yesterday in the Austin Statesman by former TDCJ monitor and LBJ school academic Michele Deitch and former TDCJ chief Gary Johnson gave it the ol' college try, criticizing the application of adult prison techniques to juvenile offenders and the newspaper's "caricatured" portrayal of the issue. "Readers have been presented with stark contrasts between a caricatured
mollycoddling philosophy that supposedly characterizes the former Texas
Youth Commission facilities, and the severe discipline, harsh physical
conditions and solitary confinement options for juveniles that are
endemic in the adult prison system," they wrote. The writers emphasized that maintaining discipline is critical to the agency's mission, but declared that:

discipline does not mean — and should not mean in the juvenile
context — use of physical force or brutality, use of pepper spray, use
of long-term solitary confinement or denial of programming. Not only are
such measures banned under the terms of federal court orders that
govern the state's juvenile justice agency, they are counterproductive
strategies that worsen outcomes for the youths and put us all at risk
when they are ultimately released from confinement.

I'm glad they mentioned the federal court orders; Grits has wondered if there's been so much turnover at the agency, remaining officials just forgot about them. The op-ed writers describe how juvenile offenders are treated in TDCJ, noting that "administrators and staffers there will be the first to say that these youths do not belong in adult facilities." And they adumbrated national research and standards critical of using adult prison facilities and methods with juvenile offenders:

National
research shows that juveniles who are housed in adult prisons have
vastly higher rates of suicide, mental illness, and sexual and physical
assaults than their counterparts in juvenile facilities. They also have
much worse outcomes, despite the (surprising) similarities in
demographics and criminal offense history. One nationally reported study
found that juveniles who spend at least a year in adult prisons and
jails have a 100 percent greater risk of violent recidivism than those
in juvenile facilities.

A few years ago, the Centers for Disease
Control and Prevention appointed a task force to evaluate all available
research on this subject. The task force concluded that the evidence is
overwhelming that transferring youths to the adult system is
counterproductive as a strategy for controlling or preventing violence;
it actually makes youths worse. The CDC called on policymakers to
immediately reverse policies that allow youths to be placed in the adult
criminal justice system.

For these reasons and others, every
major professional corrections organization — including the American
Correctional Association, the American Bar Association, the National
Commission on Correctional Health Care and the Association of Juvenile
Correctional Administrators — disapproves of the notion of keeping
juveniles in adult prisons and jails.

Finally, the authors point out that some of TJJD/TYC's programming - particularly their capital offenders program and their sex-offender regimen, "are far more successful in working with violent youths than any program the adult corrections system has to offer," encouraging lawmakers not to "throw the baby out with the bathwater."

'Smiles and tears mark day for fathers behind bars'
The Houston Chronicle has a story on Father's Day for dads behind bars. Around half of TDCJ inmates are parents of minor children.

Water rationing at Connally Unit
The Connally Unit in Karnes County last week was forced to ration water because of low pressure in the local system. "Consumable water [was] being delivered in Igloo coolers from the water tanks to each living area. Quite often, it should be noted, TDCJ units are the largest water uses in their jurisdictions, something that began to put pressure on some rural water systems during last year's drought.

Steroids case v. Roger Clemens still BS
Grits argued four years ago after Congressional hearings over Roger Clemens' alleged steroid use that the proceedings were an abuse of power and the evidence against him wasn't enough to convict in a perjury trial. As Clemens' second perjury trial nears its grueling end, reporter Jerome Solomon of the Houston Chronicle reached the same conclusion: Someone is lying, though it's impossible to say who, and "That, almost assuredly, is reasonable doubt." We'll soon see what the jury says. UPDATE: Clemens was acquitted.

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